Civil Commitments: Necessary and Proper?

Las Monday the Supreme Court in United States v. Comstock, held that Congress has the power under the Necessary and Proper Clause of Article I, Section 8 of the Constitution to enact 18 U.S.C. § 4248. Section 4248 authorizes court-ordered civil commitment by the federal government of two categories of “sexually dangerous” persons: (1) “sexually…

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The Lehigh Valley Independent’s Tenther Coverage

Writing in the Lehigh Valley Independent, Jon Geeting uses Pennsylvania’s governor race to open a discussion about Tenth Amendment Advocacy.  It is difficult to excerpt from Mr. Geeting’s article without losing context, so I’ll suggest that you go read it.  It’s not very long. In summary, Mr. Geeting uses the recent dust-up that arose when…

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Misunderstanding Necessary and Proper

In this video, you’ll see an example of a pretty common “rebuttal” to those of us who argue that the federal government is authorized to exercise only those powers which have been delegated to it.

This gentleman builds his position mostly off this statement, near the beginning of the video:

“the 10th Amendment prohibits the federal government from doing anything that isn’t specifically spelled out in the Constitution – end of argument”

He couldn’t be more wrong.

The 10th Amendment doesn’t prohibit the feds from doing anything that “isn’t specifically spelled out in the Constitution” as this person claims, or as he’s saying other people claim. The 10th prevents the feds from exercising any power that hasn’t been delegated to it by We the People.”

While it may seem like an academic distinction, it certainly is not.  The Founders debated this issue in depth and wanted to make sure that the federal government wasn’t hamstrung, and unable to deal with changes the future would obviously bring.  So they called upon the Common Law doctrine of “principals and incidents” to ensure that government could adapt.

This is found in Article 1, Section 8 of the Constitution, where Congress is empowered to make laws that are “necessary and proper” for carrying out the other listed powers of the Constitution.

What does this mean? It’s really quite simple.

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Constitutional Wisdom from Randy Barnett

I haven’t been too friendly to some of the solutions that Randy Barnett has offered for the problems we face, but – in regards to an original understanding of the purpose and intention of the Constitution, you’d be hard-pressed to find someone better. His recent blog post over at Volokh, regarding his rebuttal at Politico.com…

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